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Jammu & Kashmir High Court - Srinagar Bench

Irfan Ahmad Lone vs State Of J&K; & Others on 18 January, 2019

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

              HIGH COURT OF JAMMU AND KASHMIR
                        AT SRINAGAR
                              ...

HCP No.260/2018 Date of order: 18/01/2019 Irfan Ahmad Lone v.

State of J&K and another Coram:

Hon'ble Mr Justice Sanjeev Kumar, Judge Appearing Counsel:

For petitioner(s): Mr M. Tufail, Advocate For respondent(s): Mr Shah Amir, AAG Whether to be reported in Digest/Journal? Yes/No

1. Impugned in this petition is the Order no.65/DMB/PSA/2017 dated 21.08.2017, of District Magistrate, Baramulla (for short "detaining authority"), placing one Irfan Ahmad Lone son of Mohammad Abdullah Lone resident of Bilal Colony, Qamarwari, Srinagar (for brevity "detenu") under preventive detention to prevent him from acting in any manner prejudicial to the maintenance of security of the State.

2. The case set up in the petition is that the detenu was arrested on 08.08.2018 by police station Pattan and booked in the case FIR no.163/2018, but before he could file an application for grant of bail before the competent court, respondent no.3 addressed a communication dated 14.08.2018 to respondent no.2, for detaining the detenu and that the respondent no.2 in terms the impugned detention order placed him under preventive detention and lodged him in Central Jail, Kotebhalwal, Jammu. The said information, it is averred, was given to the detenu by respondent no.2, vide communication no.DMB/PSA/2018/326-30 dated 20.08.2018, with which he was also furnished the grounds of detention.

3. The counter affidavit has not been filed by the respondents. However, the detention record has been produced by the learned counsel for the respondents that will furnish help in deciding the instant case.

4. I have heard the learned counsel for the parties. I have gone through the pleadings as also the detention record made available by the learned counsel for the respondents.

5. The learned counsel for the petitioner has contended that the grounds of detention, served upon the detenu, are vague, uncertain, untrue, baseless and ambiguous, and no prudent man can make a representation against such allegations. Therefore, the passing of the detention on such grounds is unjustified and unreasonable. It is also stated that neither the copies of FIRs and other material have not been furnished to the detenu to enable him to make a representation. The learned counsel has further contended that respondent no.2 has stated in the grounds of detention that even though the detenu has been arrested in case FIR no.163/2018 and is in police custody, but there is every likelihood of he being admitted to bail, but the detaining authority has nowhere mentioned that as to how there was a likelihood of the detenu being admitted to bail in the grounds of detention. The grounds of detention have not been read over or explained to the detenu by respondent no.2 or anybody on his behalf in the language which he understands viz. Urdu/Kashmiri. He has also not been provided the translated copies of the grounds of detention to enable him to make an effective representation against his order of detention to the appropriate authority. According to the counsel for the petitioner when a person is booked under a substantive offence, he cannot be placed under preventive detention unless there are compelling reasons for doing so and those compelling reasons have to be stated in the order or in the grounds of detention. It is next contended by the learned counsel that the detenu was already in the custody in relation to a criminal case; neither had he HCP no.260/2018 Page 2 of 13 applied for bail nor bail was otherwise granted to him and the detaining authority has not given any justified reason to pass the detention order if he was already in custody in relation to a criminal case. To reinforce his submissions, counsel for petitioner has placed reliance on Razia Umar Bakshi v. Union of India and ors 1980 AIR SC 1751; Surya Prakash Sharma v. State of U.P. & others; Rekha v. State of Tamil Nadu & another, (2011) 5 SCC 244; and Sama Aruna v. State of Telengana AIR 2017 SC 2662.

6. While opposing the writ petition, the learned counsel for the respondents has argued that the detention order does not suffer from any legal infirmity and that the grounds of detention sufficiently connect the detenu with the activities, which are highly prejudicial to the maintenance of the security of the State. He has also contended that the material relied upon by the detaining authority has been furnished to detenu, besides the grounds of detention along with the detention order was supplied to detenu against proper receipt.

7. Prior to adverting to the case in hand, it would be germane to mention here that with the evolution of the mankind from the primitive stage to the stage of the social welfare state, the administration of the criminal law assumed great importance. As long as the human beings were God- fearing and had faith that their actions were being watched by the Almighty, the need for the administration of the criminal justice was not felt. However, with the passage of time and the people becoming more materialistic, a section of the society comprising of misguided and disgruntled human beings lost faith in the Almighty and started thinking that their actions could not be seen by anybody. These misguided persons' indulgence in the criminal activities, led to the necessity to have an administration of the criminal justice. In addition, the activities, to be termed as the criminal activities, have also undergone change with the HCP no.260/2018 Page 3 of 13 passage of time. What was regarded not harmful half a century ago has become the greatest evil of the day in view of the changed circumstances, new researches, new thinking and modern way of life. It needs no stress that the crime is an act against the society at large and requires for stricter action from the authorities. The criminal justice administration allows detention of a person in two circumstances, or a detention can be one of the two kinds:

a) Punitive detention, and

b) Preventive detention,

8. Punitive detention is the detention as a punishment for the crime committed by an individual. It takes place after the actual commission of an offence or, at least, after an attempt has been made. The time taken from the actual offence to the detention can vary in length. It is a punishment imparted to the wrongdoer and involves the strict measures. The duration of such a detention depends on what the law stipulates for the particular offence.

9. Preventive detention is the detention made as a precautionary measure. This kind of the detention can be made by the authorities even on a slight apprehension that the person can commit a crime. It is generally made for protecting the society from any future happening. It is not a punishment but a precaution. This detention comes to an end the moment the apprehension of the danger ends. It is in this backdrop that the framers of the Constitution have, by incorporating Article 22 (5) in the Constitution, left room for the detention of a person without a formal charge and trial and without such person having been held guilty of an offence and sentenced to imprisonment by a competent court. The object is to save the society from activities that are likely to deprive a large number of the people of their right to the life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch HCP no.260/2018 Page 4 of 13 as, by the time ordinary law is set into motion, the person having the dangerous designs, would execute his plans, exposing the general public to risk and cause the colossal damage to the life and property. It is, therefore, necessary to take the preventive measures and prevent the person bent upon perpetrating the mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of the preventive detention law.

10.The present case relates to the acts and activities of the detenu that have the detrimental ramifications over the society more particularly the maintenance of the security of the State. It is most apposite to state here that the militant and terrorist activities are serious threat to the security and integration of the State. Our global society is facing serious consequences of the militancy and terrorism. There is no gainsaying that the frequent acts of the militancy and terrorism in a society create the multifaceted quandaries as the government struggles to maintain a semblance of order and legitimacy amidst the chaos of terror and at the same time a common man faces the reverberations of such horrendous incidents either to give up his life or of his loved ones. So, how to tackle the spectre of fear and to prevent and combat any activity prejudicial to the maintenance of the public order and/or the security of the State, the J&K Public Safety Act, 1978 was enacted on 8th April 1978.

11.The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of the detention is the satisfaction of the executive of a reasonable probability of likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha v. State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and HCP no.260/2018 Page 5 of 13 legal evidence. There is no parallel between the prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent.

12.It is long back that an eminent thinker and author, Sophocles, had to say:

"Law can never be enforced unless fear supports them." This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in the today's society. Every right-thinking citizen is duty bound to show esteem to the law for having an orderly, civilized and peaceful society. It has to be kept in mind that the law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts the law, he has to face the ire of the law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of the criminal law legislated by the competent legislatures, subject to the judicial scrutiny within the constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that the law cannot bind the individual actions, which are perceived as flaws by the large body of people, but the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activity on the society. It is neither to be guided by a sense of the sentimentality nor to be governed by the prejudices. Acts or activities of an individual or a group of individuals, prejudicial to the security of the State and/or public order, have the HCP no.260/2018 Page 6 of 13 magnitude of across-the-board disfigurement of the societies. No court should tune out such activities, being won over by the passion of mercy. It is the obligation of the Court to constantly remind itself that the right of the society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.

13.Primarily, Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, guarantee the safeguard to the detenu to be informed, as soon as may be, of grounds on which the order of detention is made, which led to the subjective satisfaction of the detaining authority and also to be afforded an earliest opportunity of making a representation against the order of detention. The detenu is to be furnished with the sufficient particulars to enable him to make a representation, which on being considered, may obtain a relief to him. In the present case it is necessary to be seen as to whether the basic right guaranteed to a detenu, under Article 22(5) of the Constitution and Section 13 of the Act of 1978, has been complied with or not. The detention record, made available by the learned counsel for the respondents, reveals that the detention order was made on the proper application of mind, to the facts of the case and the detenu was delivered at the time of execution of the detention order, the material and the grounds of the detention and was also informed that he had a right to represent against his preventive detention. Perusal of the endorsement on the overleaf of the detention order made by the Executing Officer, namely, ASI Ashok Kumar No.755/B of DPL Baramulla, at the time of execution of the detention order, does unequivocally show and reflect that the material referred to in the grounds of detention, has been furnished to the detenu. For facility of reference it would be advantageous to reproduce the overleaf "Execution Report" of the detention order infra:

"Execution Report HCP no.260/2018 Page 7 of 13 In compliance to District Magistrate Baramulla Order No.65/DMB/ PSA/2018 Dated 20.08.2018 issued vide endorsement No.DMB/ PSA/2018/326-30 dated 20.08.2018, I ASI Ashok Kumar No.755/B of DPL Baramulla took the custody of Irfan Ahmad Lone S/o Mohammad Abdullah Lone R/o Bilal Colony Qamarwari Srinagar on 20.08.2018 from Police Station Pattan for execution of PSA detention Warrant at Central Jail Jammu Kot Bhalwal. The detention warrant has been executed at Central Jail Jammu Kot Bhalwal today on 21.08.2018. The notice of the detention has been given to the said detnue and contents of detention warrant & grounds of detention have been read over to the said detune in English and explained to him in Kashmiri Language which he understood fully, in lieu of which his signature has been obtained below at mark (A).

The detention order (01 leaf), Notice of detention to the detnue (01 Leaf), Grounds of detention (02 leaves) copies of FIR No.163/2018 of P/S Pattan FIR 322/2015 of P/S Parimpora, (02 leaves) Recovery memo (01 leaf) Seizure memo (01 leaf) Arrest memo (01 leaf) Statement of witnesses (02 leaves) (Total 11 Leaves) have been handed over to the above said detune at Central jail Jammu Kot-Bhalwal on 21.08.2018 against proper receipt. The said detune has also been informed that he can make representation to the Government as well as Detaining Authority against his detention order, if he so desires."

14.Thus, it is explicitly evident from the overleaf of the order of detention that the detenu, at the time of execution of detention order, has been handed over all what has been referred to in the grounds of detention by the detaining authority, so as to enable him to make an effective representation against his detention. The detenu has been also informed that he can file a representation against his detention to the Government as well as to the detaining authority. The grounds of detention are definite, proximate and free from any ambiguity. The detenu has been informed with sufficient clarity what actually weighed with the detaining authority while passing the detention order. The detaining authority has narrated the facts and figures that made the authority to exercise its powers under Section 8 of the Act of 1978, and record the subjective satisfaction that the detenu was required to be placed under the preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.

15.The detaining authority, in the present case, has informed the detenu that the detenu after studying upto Class 12, indulged in the subversive ad illegal activities to carry out nefarious designs of terrorists. Grounds of detention also mention that the detenu was found involved in organising unlawful assembly and pelting stones upon police/security forces at Masjid Ibrahim, Qamarwari, and as a consequence whereof, the detenu was arrested in connection with the case FIR no.322/2017 of Police Station Parimpora. The detenu is stated to have developed contacts with various terrorists and providing them food, shelter and logistic support. The grounds of detention also reveal that the specific involvement of the detenu was surfaced on 08.08.2018, when the personnel of police/army and CRPF established a Naka at Buchoo, near Graveyard Pattan, following an information with regard to movement of militants in the area and during Naka, the detenu was apprehended while moving in suspicious condition. On the detenu's personal search, two hand grenades were recovered from his possession and accordingly a case FIR no.163/2018 under Section 7/25 Arms Act, was registered in Police Station Pattan. This act is sufficient to prevent the detenu from indulging in such prejudicial activities that has direct bearing on our society. So viewed, the detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while detention order in question was slapped on him and thereafter executed.

16. The counsel for the petitioner has stated that the allegations/grounds of detention are vague and the instances and cases mentioned in the grounds of detention have no nexus with the detenu and have been fabricated by police in order to justify its illegal action of detaining the detenu. The counsel for the petitioner also avers that the detaining authority has mentioned a single incident in the grounds of detention for slapping the preventive detention upon the detenu. It may not be out of place to HCP no.260/2018 Page 9 of 13 mention here that the Supreme Court, in several decisions, has held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In Debu Mahato v. State of W.B. (1974) 4 SCC 135, it was observed by the Supreme Court that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case "one act may suffice". That was a case of wagon-breaking and given the nature of the Act, it was held therein that "one act is sufficient". The same principle was followed in Anil Dely v. State of W.B. (1974) 4 SCC

514. It was a case of theft of railway signal material. Here too "one act was held to be sufficient". Similarly, in Israil SK v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC 310, a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be thus: "Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity". The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in the similar prejudicial activity. That is the reason why the single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates, were held sufficient by the Supreme Court. Similarly, where a person tried to export the huge amount of the Indian currency to a foreign country in a planned and premeditated manner, as in the present case the detenu has been HCP no.260/2018 Page 10 of 13 apprehended with two hand grenades, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.

17. If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, they are all these acts that are prejudicial to the security of the State or the maintenance of public order. The acts, indulged in by the persons, who act in concert with other persons and quite often such activity has the national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of the people fascinated in tumultuousness. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for the detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of the grounds for making or sustaining an order of detention. The said views and principles have been reiterated by the Supreme Court in Gautam Jain vs Union of India anr, AIR 2017 SC 230.

18. The counsel for the petitioner has also urged another ground to assail the impugned detention order that detenu is not English literate person and understands only Kashmiri language whereas the order of detention is in English and no translated script in Kashmiri was furnished to detenu nor were grounds read over and explained to him in the language he understands so that he could make an effective representation.

19. While it is the settled law that the detention order, grounds of detention and documents, referred to and relied on, are to be communicated to the detenu in a language understood by him so that he could make an effective representation against his detention, the question arises as to HCP no.260/2018 Page 11 of 13 whether the courts have necessarily to accept what is stated by the detenu or it is permissible for the Court to consider the facts and circumstances of the case, so as to have a reasonable view as to the detenu's knowledge of the language in which the grounds of detention were served. If the detenu's statement is to be accepted as correct under all circumstances it would be incumbent on the part of the detaining authority in each such case to furnish the grounds of detention in the mother tongue of the detenu which may involve some delay or difficulty under peculiar circumstances of a case. On the other hand, if it is permissible to ascertain whether the statement of the detenu in this regard was correct or not, it would involve a subjective determination. It would, of course, always be safer course in such cases to furnish translated script in the detenu's own language. The Supreme Court after saying so in Kubic Dariusz v. Union of India & ors, AIR 1990 SC 605, has viewed that it would be open for the Court to consider the facts and the circumstances of a case, to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished. The Supreme Court has held that the detenu is not required to write an essay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known to him. In the present case, perusal of the detention record, produced by learned counsel for respondents, reveals that the detenu has put his signatures, both on overleaf of detention order when the detention was executed and on Receipt of grounds of detention, accepting and admitting that he understood the contents of the grounds of detention as the same has been explained to him in the language which he understands, i.e. Kashmiri. Here, one important aspect is to be taken note of that the documents, HCP no.260/2018 Page 12 of 13 except the detention order, the grounds of detention and the communication for making representation to the detaining authority and Government, in the shape of FIRs and other relevant material, are in Urdu language. And insofar as these excepted documents, viz. detention order, grounds of detention and communication, albeit, are in English language, but have been explained to detenu in Kashmiri Language. Besides, the detenu has studied up to Class 12th. This is so stated in the grounds of detention, which fact the petitioner has not disputed in the petition. Thus, it cannot be heard saying that the detenu has no knowledge about the English language. The fact that the detenu has read up to 12th and the grounds of detention have been explained to him in his vernacular, go a long way to show that the right of the detenu to make an effective representation has not been impaired in any manner. Be that as it may, the petition lacks in merit.

20. Based on the aforesaid reasons and discussion, the petition fails and is, accordingly, dismissed.

21. Detention record be returned to the counsel for respondents.

(Sanjeev Kumar) Judge Srinagar 18.01.2019 Ajaz Ahmad, PS HCP no.260/2018 Page 13 of 13